Thursday, May 31, 2012
Within the next few years, all health care providers will transition from paper charts to electronic medical records (“EMRs”) and operate exclusively within an EMR system.
ESI and EMR
Both the recently enacted “Patient Protection and Affordable Care Act” and “Health Information Technology for Economic and Clinical Health Act” and monetary incentives and compliance deadlines created by the Centers for Medicare and Medicaid Services are spurring health care providers to hurriedly transition to EMRs.
Beyond amassing and organizing existing Electronically Stored Information (“ESI”), EMRs will have an active role in patient treatment ranging from enabling providers to interface to offering clinical decision support.
Further, while sharing core functionalities, more sophisticated EMR systems may suggest courses of treatment upon an analysis of medical data, remind a provider of clinical practice guidelines or automatically warn of a patient's allergies or a dangerous combination of medications.
EMR and Personal Injury Litigation
EMRs widespread adoption may aid personal injury litigation by both placing unwieldy amounts of information in a user-friendly and searchable format and "definitively" provide the facts surrounding a patient's care.
EMRs may also alter fundamental elements of medical malpractice litigation including increasing the number of parties to sue, the costs of bringing a claim and the amount of time needed to resolve a dispute.
For example, because copying and pasting information from EMR to EMR is a basic system function, perpetuating an existing error or inaccuracy that will follow a patient from provider to provider will increase. Thus, errors like omitting a medication allergy during one provider's treatment may result in an adverse event through the course of treatment with other providers.
This error’s origin may only be discovered well into a claim’s litigation necessitating amending pleadings and creating liability disputes.
Extending liability to an EMR vendor is inevitable and will require significant technical discovery further complicating an already complex medical malpractice claim.
Further, beyond carefully choosing an EMR vendor and system, health care providers will need to avoid contractual agreements immunizing from technical errors (like software bugs and hardware malfunctions) causing adverse events.
EMR use may also change how medical malpractice standards of care are defined.
Providers implicated in an adverse event may be weighed and measured against a sophisticated EMR system providing differential diagnoses or recommending courses of treatment.
If a provider deviates from an EMR's recommended course of treatment, a jury may equate it to deviating from a legally defined standard of care requiring the defense to provide both a standard of care set forth by an expert and a justification for deviating from EMR-generated treatment recommendations.
Further, providers not using EMR systems may face exposure for failing to adhere to the diagnoses or courses of treatment that the EMR system would have provided.
Legislation has been proposed in Pennsylvania’s State House to provide medical malpractice claim immunity to suppliers of medical data to electronic databases and on the federal level, the proposed “Safeguarding Access for Every Medicare Patient Act” seeks to create legal protections for providers if an adverse event occurs as a result of EMR errors.